While German bombers were pounding Britain in late 1941, writer George Orwell cast a discerning eye over the England he wanted to prevail. He saw approvingly “an all-important English trait: the respect for constitutionalism and legality, the belief in ‘the law’ as something above the State and above the individual, something … incorruptible.”
The law is ultimately enforced through the courts, and here Orwell noted positively that even what he termed “the hanging judge, some gouty old bully … will at any rate interpret the law according to the books and will in no circumstances take a money bribe.”
Orwell drew a distinction between constitutionality and legality that remains common in England. Canada inherited the concept. In 1981 the Supreme Court of Canada hauled Pierre Trudeau to the curb by ruling that his plan for the federal government to act alone in imposing constitutional amendment was “legal but not constitutional.”
The famously flip and arrogant Trudeau later sneered that the judgment came down to saying what he had wanted to do was “legal but not nice” – but at the time he durst not defy the Supreme Court’s edict. Instead he went to the premiers to cut the deal which achieved substantial constitutional reform in 1982.
More recently Stephen Harper evoked Trudeau’s spirit by proposing federal action alone to reform the Senate.
“No can do,” said the Supreme Court.
Harper’s subsequent unwillingness to mount an initiative to get the necessary provincial consent is where he departs from Trudeau, yet the issue of Senate reform now is no worse gridlocked than constitutional reform was then.
As Orwell noted, constitutionalism draws public respect. Acting in defiance of democratically established constitutions, whether written or developed through custom, deprives a government of legitimacy. People feel justified in defying such governments.
Stephen Harper’s recent tilt at the chief justice of Canada was an aftershock from the Supreme Court’s demolition of Harper’s attempt to appoint the ineligible Marc Nadon to become one of its number. Within days of the decision, anonymous sources – stated to be Conservative MPs, whom a national newspaper article asked readers to believe were speaking despite an edict from the Prime Minister’s Office not to – generated a complaining story that the chief justice had actually approached the prime minister to lobby against Nadon’s appointment. The chief justice retorted that her approach had been before Nadon’s nomination was announced, and only to advise of an eligibility issue “well-known in legal circles.”
The unidentified squeakers expressed outrage that “unelected judges override important community standards.”
This referred to a string of strikeouts for government legislation brought before the Supreme Court. Well, like Orwell’s gouty hanging judge, try interpreting the law according to the books. Start by scrutinizing the Constitution Act – the document has not been redacted, ’tis there to read. Get it into your heads – the constitution is above Parliament. Use the notwithstanding provision if you dare, but quit trying constitutional end runs to put your wishes into law.
Writer David Haas is a long-term St. Albert resident.
